This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Gary Martin,


Filed June 24, 2003


Minge, Judge


Ramsey County District Court

File No. T70196252



Gary Martin, Federal Correctional Institution, P.O. Box 1731, Waseca, MN 56093 (pro se appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Manuel J. Cervantes, St. Paul City Attorney, Rachel Gunderson, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)


            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge

On appeal from a conviction for fifth-degree domestic assault, appellant argues that he was denied the effective assistance of counsel and that there was insufficient evidence to support his conviction.  We affirm.


On December 1, 2001, appellant Gary Martin was arguing over the telephone with his girlfriend, Stephanie Allen.  She was at the home of friends.  After the argument, appellant went to the home of the friends, where he proceeded to punch Allen in the face so hard that she fell off her chair.  One of the friends called the police and appellant was arrested for domestic assault.

Both friends testified for the state.  Afterward, one of them informed the prosecuting attorney that a juror told her she had done a good job.  The district court questioned that witness, and she said that she had been mistaken and that the man who made the comment was not a juror.  The district court also questioned all of the jurors, who denied having any contact with the witness.  The court thereafter determined that the person who spoke to the witness was not a juror.  Appellant’s attorney moved for a mistrial.  The district court denied the motion for a mistrial, and the trial continued.  The jury returned a verdict of guilty, and this appeal followed.






  The first issue raised by the appellant is that he had ineffective assistance of legal counsel.  To succeed on his ineffective assistance of counsel claim, appellant must “affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)).  “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’”  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  In addition, appellant must affirmatively prove that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  Gates, 398 N.W.2d at 561 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).  A reasonable probability is defined as “‘a probability sufficient to undermine confidence in the outcome.’”  Id.  

Appellant first points to his absence at pretrial proceedings as an example of his attorney’s ineffectiveness.  Appellant argues that his absence at the pretrial hearing constitutes a violation of his attorney’s duty to keep him informed.

The transcript from the hearing indicates that the hearing was to set a trial date and to determine whether appellant should get a 60-day continuance to hire private counsel.  Appellant’s claim is not that his right to be present was violated[1] but rather that allowing the pretrial proceedings to continue without appellant’s presence constitutes ineffective assistance of counsel.  But appellant has not provided any evidence or argument to show a reasonable probability that if he had been present at the May 10 hearing, the result of the proceeding would have been different. 

Appellant’s trial lasted three days.  Appellant argues that because his trial attorney did not insist that the trial recess at 5:00 p.m. on a particular day, the prosecution was able to “summarize their case and not allow any mitigation until the next day.”  On the day in question, the officer who responded to the call to the police was the state’s last witness.  There was some discussion at trial of continuing past 5:00 p.m. so that the state could finish its direct examination of the officer and so that appellant’s attorney could cross-examine the officer.  Appellant’s attorney stated that he wanted to cross-examine the officer that afternoon rather than stop the proceedings promptly at 5:00 p.m. and have to wait until the next morning to cross-examine the officer.  At approximately 5:15 p.m., the officer was done testifying and the state rested its case. 

Appellant has not shown that allowing the proceedings to continue past 5:00 p.m. fell below an objective standard of reasonableness.  Even if appellant could show that the conduct fell below an objective standard of reasonableness, appellant has not shown that the outcome of the proceedings would have been different had the proceedings been stopped promptly at 5:00 p.m. on the day of the officer’s testimony.

Appellant argues that his attorney failed to properly move for a mistrial after a question arose over possible juror contact with a witness, that his attorney allowed hearsay evidence into the record, and that his attorney prevented him from testifying.  There is no factual basis for any of these arguments.  The record reflects that the court found the witness had not been contacted by a juror, but that in any event appellant’s attorney did move for a mistrial.  On the other matters, the attorney did object to the hearsay evidence, and there is no record that the attorney prevented appellant from testifying. 

Appellant makes several other claims that his attorney’s assistance was ineffective, including claims that his attorney did not properly cross-examine witnesses, asked the victim whether she had a knife, did not call the public defender investigator to testify, and allowed 911 transcripts to be given to the jury.   

Errors in trial strategy do not form a basis for ineffective assistance of counsel claims.  Jones, 392 N.W.2d at 236.  Deciding which witnesses to call and what information to present to the jury

are questions that lie within the proper discretion of the trial counsel.  Such trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.  Counsel must, after all, have the flexibility to represent a client to the fullest extent possible.


Id. (citing Strickland, 466 U.S. at 693, 104 S. Ct. at 2067).  In Cooper v. State, where an appellant alleged that his attorney failed to follow certain evidentiary leads, present certain testimonial evidence, obtain expert testimony, and meaningfully cross-examine witnesses, the court held that the alleged errors “involved the exercise of tactical judgment and will not support a claim of ineffective assistance.”  Cooper v. State, 565 N.W.2d 27, 33 (Minn. App. 1997) (citations omitted), review denied (Minn. Aug. 5, 1997). 

            Here, appellant’s objections are to the witnesses called, the questions asked, and the evidence presented to the jury.  Those alleged errors are tactical decisions that will not support a claim for ineffective assistance of counsel.  Even if the alleged errors were not tactical matters, appellant has not demonstrated that but for the alleged errors, the outcome of the proceeding would have been different. 


Appellant argues the evidence is not sufficient to support his conviction because both witnesses, who were friends of the victim, admitted to being intoxicated at the time of the incident and because one left the scene before police arrived.

Appellant’s claim that the witnesses admitted being intoxicated at the time of the incident is not supported by the record.  Both said they may have been drinking the night before the incident but that they were not drinking at the time of the incident.  One admitted to drinking with the victim after the incident.   

Even if appellant’s claim did have factual support, it would still not be persuasive.  Appellant’s claim goes to the credibility of the witnesses.  Witness credibility “is not a question for this court but lies within the province of the jury.”  State v. Jones, 347 N.W.2d 796, 801 (Minn. 1984) (rejecting claim that evidence was insufficient because a witness was intoxicated). 

The other evidentiary issue raised by appellant is also without merit.  It is unclear how leaving the scene after the incident would impair a witness’s ability to remember the actual incident.  It appears appellant is again attacking the credibility of that witness.  Because credibility determinations lie within the province of the jury, appellant’s argument is not persuasive.  See Jones, 347 N.W.2d at 801. 

Both witnesses testified to seeing appellant hit Allen in the face so hard that she fell off her chair.  Viewing the evidence in the light most favorable to the verdict and assuming the jury believed the state’s witnesses, the jury could reasonably conclude that appellant had in fact committed an assault. 


[1] Under the Minnesota Rules of Criminal Procedure, criminal defendants have a right to be present at every stage of their trial.  Minn. R. Crim. P. 26.03, subd. 1; State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).  The right to be present at every stage of the trial is broader than a defendant’s right under the United States Constitution to be present “at every critical stage of the criminal proceedings.”  State v. Charles, 634 N.W.2d 425, 432 (Minn. App. 2001) (citing State v. Grey, 256 N.W.2d 74, 76 (Minn. 1977)).  But, even if a defendant’s right to be present is violated, “the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt.”  State v. Breaux, 620 N.W.2d 326, 332 (Minn. App. 2001) (quoting Ware, 498 N.W.2d at 457-58).